ML20093A960

Brief in Support of Limerick Ecology Action Appeal from ASLB 840829 Second Partial Initial Decision

ML20093A960
Person / Time
Site:	Limerick
Issue date:	10/03/1984
From:	Elliott C AFFILIATION NOT ASSIGNED, LIMERICK ECOLOGY ACTION, INC.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#484-327 OL, NUDOCS 8410090414
Download: ML20093A960 (53)

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-UNITED STATES OF AMERICA'

, 1 NUCLEAR.' REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY-AND LICENSING APPEAL BOARD' In the Matter of )'

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PHILADELPHIA-ELECTRIC COMPANY ) Docket'Nos. 50-352 0 6

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(Limerick Generating Station, )

Units 1 and.2) .- ) s BRIEF IN SUPPORT OF APPEAL OF LIMERICK ECOLOGY ACTION, INC.~ ,

Charles W. Elliott, Esquiro 1101 Building

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llth and Northampton Streets Easton, Pennsylvania 18042

, (215) 258-2374 Counsel for Limerick Ecology Action, Inc.

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E V- -i-TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . - . . . . . . . .. . . . . . . 11 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . 1 II. STATEMENT OF ISSUES AND ARGUMENT . . . . . . . . . . . 2 A. The Board's Exclusion of Staff-identified Mitigation Design Alternatives from the Licensing Process and Environmental Review Violates NEPA and Commission Regulations . . . . . 2-B. The Board Improperly Excluded From the Environmental Review tne Risk from Sabotage .. . 11 C. The1 Board Improperly Excluded from NEPA Consideration of Severe Accident' impacts the Socioeconomic Impact or Compensation of Victims and Total Industrial Impacts . . . . . 18 D. Neither the FES Nor the Record of Decision Below Constitutes An Adequate Disclosure and Consideration for NEPA Purposes of the Risk of Human Health Impacts From' Severe Accidents . . 26 ,

E. The Board's Conclusion that. Applicant's

, "On-Site" Emergency Plans Are Adequate Violates Commission Regulations, The Atomic Energy Act, and the Administrative Procedure Act ... . .. . 33

1. The Board's Failure to Determine the Adequacy of Applicant's Emergency Facilities and its Delegation to the Staff of Determination of Issues in Controversy Before the Board Violates Applicable Law . . . . . .. . . . . . . . . . 33

2. The Board Improperly Concluded that Applicant's Medical Care Arrangements Complied with 10 C.F.R. R 50.47 . . . . . . 39 F. The " Record of Decision" Fails to Comply with 10 C.F.R. 8 51,103 . . .. . . . . . . . . . 47 III. CONCLUSION . . . . . . . . . . . .. . . . . . . . . . 48 ,

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TABLE OF AUTHORITIES CASES Federal Court Cases Page Baltimore Gas and Electric Co. et al. v. Natural Resources Defense Council, Inc., U.S. ,

103 S. Ct, 2246, (1983) . . . . . . . . . , , , , . , , 27 City of Rochester v. U.S. Postal Service, 541 F. 2d. 967 (2d Cir. 1976) . . . . . . . . . . . . . . . . 25 Duke Power Co. v. Carolina Environmental Study Group, U.S.

595 (197E) ~7,. . . . . .,. . . . . . . . . . . . . .

S. Ct. 57 L. Ed. 2d 21, 22 Grazing Fields Farm v. Goldschmidt, 626 F. 2d.

1068 (1st Cir. 1980) - - - - - - . . - . . . . . . . . . 32 Monroe County Conservation Council, Inc. v. Volpe,-

472 F. 2d 693 (2d. Cir. 1972) . . . . . . . . . . . . . . 2 People Against Nuclear Energy v. U.S. Nuclear Regulatory Commission, 678 F. 2d. 222(1982), rev'd sub nom Metropolitan Edison Co. v. PANE, __U.S.__(1983) . . . . . 16 Public Service Co. of New Hamashire v. U.S. Nuclear Regulatory Commission, 532 F. 2d. 77 (1st Cir.

1978) * * * * * * * * * * * * * * * - - * * - *

• 2 Save Our Ecosystems v. Clark, F. 2d. , 20 E.R.C.

1607 (9th Cir. 1984) - . . . . . - . . . . . . . . . . . 17 Sierra Club v. Sigler, 695 F. 2d. 957 (5th Cir. 1983) . . . . 16, 17 Southern Oregon Citizens Against Toxic Sarays, Inc. v.

Clark, 720 F. 2d. 1475 (9th Cir. 1933) . . . . . . . . . '16 Trinity Episcopal School Corp. v. Romney, 523 F. 2d 88 (2d. Cin 1975) - . . . . . . . . . . . 25 Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, __F.2d , (82-2053, D.C. Cir. 1984) . . . . 38 Vermont Yankee Nuclear Power Cora, v. Natural Resources Defense Council. Inc., 435 J.S. 519, 98 S. Ct.1197 (1978) - . . . . . . . . . . 2

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Page Commission Issuances Consolidated Edison Co. of New York (Indian Point, Unit No. 2) et al., 18 NRC 811 (1983) . . . . . . . . . 12, 13 Consumers Power Co. (Midland Plant, Units 1 and 2)

ALAB-315, NRC I 76-2, 103 (1976) . . . . . . . . . . . . 10 Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), 17 NRC 1076 (1983) . . . . . . 37 Philadelphia Electric Co., (Limerick Generating Station, Units 1 and 2) LBP-82-92A, 16 NRC 1387 (1982) . . . . . . . . . . . . . . . . . . . 9

' Southern California Edison Co. et al.(San Onefre Nuclear Generating Station, Units 2 and 3)

CLI-83-10, 17 NRC 528 (1983) . . . . . . . . . . . . . 43, 44 Statutes Administrative Procedure Act, 5 U.S.C B551 et; seq. . . . . . . . . . . . . . . . . . . 38, 39, 45 Atomic Energy Act of 1954, 42 U.S.C. 82011, ei sea. . . . . . 38 National Environmental Policy Act, 42 U.S.C.

84321, et, sea. . . . . . . . . . . . . . . . . . . . . . passim Price-Anderson Act, 42 U.S.C. 82210 . . . . . . . . . . . 21 Regulations 10 C.F.R. Part 50, Appendix E . . . . . . . . . . . . . . . 33, 38 10 C.F.R. 350.47 . . . . . . . . . . . . . . . . . . . 39, 41 10 C.F.R. 851.52(b)(3) . . . . . . . . . . . . . . . . . . . 31 10 C.F.R. 351.71 . . . . . . . . . . . . . . . . . . . . . . 4 10 C.F.R. 951.102 . . . . . . . . . . . . . . . . . . . . . . 31 10 C.F.R. 851.103 . . . . . . . . . . . . . . . . . . . . . . 47, 48 10 C.F.R. Part 73

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Page (Cont'd) Regulations 40 C.F.R. 91502.14 . . . . . , , . ... . , , . . . . . . . . 3 40 C.F.R. 31502.16(b) . . . . . . ... . , , . . . . . . . . 3 40 C.F.R. 91502.22 ,, . . . . , , .. . . . . . . . . . , . 15 40 C.F.R. E1508.04 . . . . . . . . . .. . . . . . . . . . . 19 Miscellaneous NUREG-0654, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants . . . . . 36, 41, 43, 44 NUREG-0696, " Functional Criteria for Emergency Response Facilitics" .. . . .,, ,,,, , . . . . . . 34 NUREG-0814, " Methodology"for Evaluation of Emergency Response Facilities . . . . . .. .... . . , , . . . 34 NUREG-0974, " Final Environmental Statement relating .

to the operation of Limerick Generating Station, Units 1 and 2" , , ... . . . .. ...,, , , , . passim NUREG/CR-1029 " Program for the Investigation of Vent-Filtered Containment Conceptual Designs for Light Water Reactors" . .. .. ........... 5 NUREG/CR-2155 "A Review of che Applicability of Core Rotention Concepts to Light Water Reactor Containments" . . . . . . . .. . . ........... 6 NUREG/CR-2666, "PWR Severe Accident Delineation and Assessment" . .. .. . . ........ . . . . . . . 6

" Policy Statement on Safety Goals for the Operation of Nuclear Power Plants," 48 Fed. Reg. 10772, et seq. . . . . . . . . . . . . . . . . . . . . . 13, 14

" Proposed Commission Policy Statement on Severe Acci-dents and Related Views on Nuclear Reactor Regulation," 48 Fed. Reg. 16014, et sen. . . . . , , . . 5, 14

" Statement of Interim Policy on Nuclear Power Plant Accident Considerations under the National Environmental Policy Act", 45 Fed. Reg. 40101, et seq. . . . . . . .. ... . . . . . . . . . . 16, 26

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UNITED STATES OF-AMERICA . '

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-BEFORE THE ATOMIC-SAFETY.AND' LICENSING APPEAL' BOARD

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,In.the Matt'er-of- ,)' '

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. PHILADELPHIA. ELECTRIC COMPANY-) Docket Nos; '50-352 OL

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(Limerick;Ge'nerating Station, )

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I 3 i'- BRIEF'IN SUPPORT OF APPEAL OF LIMERICK' ECOLOGY ACTION, INC.

x I. INTRODUCTION-hp '

, This matter is before the-Appeal Board on the appeal .

of' intervenor Limerich Lcology Action, Inc. . (LEA) ~ from the Atomic' Safety and Licensingi Board (ASLB) Second-Partial.

Initial Decision of August 29, 1984, and various other re--

t lated inter 1ocutory orders which heretofore were unappeal-able. .

Those related-orders are: " Memorandum and Order Re-jecting Table S-3 Fuel Cycle' Contention" (February 10,

1983), "Second Special Prehearing Conference Order" -(July 26, 1983), " Order Confirminlg Rulings and Schedules Made at 1 A

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.Special Prehearing Conference on-NEPA Severe Accident Con-n i .: -

i tentions" (April 20, 1984). The essential issue.on appeal 3,.t ,

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with respect to those.related orders'is tho' propriety of li-P\ -

the ASLB's exclusion of various. issues from the licensing

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IT STATEMENT OF' ISSUES AND ARGUMENT ~

iTHE BOARD'S EXCLUSION OF STAFF-IDENTIFIED MITIGATION DESIGN

-ALTERNATIVES FROM THE LICENSING' PROCESS AND ENVIRONMENTAL REVIEW VIOLATES NEPA AND COMMISSION REGULATIONS Pursuant to.the National Environmental Policy Act,1/

the' Commission is required to include in every report on a pro-posal significantly affecting the quality of the~ human environ-

. ment a '.' detailed statement" on " alternatives to the proposed action'." 42 U.S.C. H 4332 (2)(c)(iii). The issuance of an-operating. license of-a nuclear power reactor is subject.to these requirements. See, e A , Vermont Yankee Nuclear Power Corp. v.-Natural Resources Defense Council, 435 U.S. 519, 98 S. Ct. 1197 (1978); Public Service Co. of New Hampshire v. U.S.

Nuclear Regulatory Commission, 582 F. 2d. 77,--81 (1st Cir. 1978). .

, NEPA was designed to" promote efforts which will prevent or eli-l_

minate damage to the environment and biosphere and stimulate ,

I the health and welfare of. man." 42 U.S.C. 54321 (1976).

While the obligations of an agency under NEPA are " essentially procedural" (Vermont Yankee, supra, 435 U.S. at 558), among the

. purposes of those " essentially procedural" obligations is to compel the agency to undertake a " thorough study and a detailed description of alternatives" to the proposed action. Monroe

! -County Conservation Council, Inc. v. Volpe, 472 F. 2d. 693, 697-8

j. 42 U.S.C. 54321, et. seg.

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(2d. Cir. 1972). This requirement for a thorough study and a

detailed description of alternatives has been described as the " linchpin of the entire impact statement". Id.

The Council on Environmental Quality, in its binding

' regulations, considers the comparison and analysis of alternatives to be at the " heart of an environmental impact statement":

51502.14 Alternatives including the proposed action.

This section is the heart of the environmental im-pact statement. Based on the information and ana-lysis presentgd in the sections on the Affected Environment (81502.15) and the Environmental Con-sequences ($1502.16), it should present the environ-mental impacts of the proposal and the alternatives is comparative. form, thus sharply defining the issues and providing a clear basis for choice among options by the decision maker and the public. In this section agencies shall:

(a) Rigorously explore and objectively evaluate '

all reasonable alternatives, and for alterna-tives which were eliminated from detailed study,

, briefly discuss the reasons for their having been eliminated.

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(f) Include appropriate mitigation measures not already included in the proposed action or alternatives.

40 C.F.R. $1502.14 2 /.

i The Commission's own regulations implementing.NEPA re-i quire it to consider alternatives to mitigate adverse environ-l mental impact:

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See also, 40 C.F.R. 51502.16(b), requiring a discussion of

j. "means to mitigate adverse environmental impacts'(if not fully covered under 31504.14(f))."-

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$51.71 Draft Environmental Impact Statement -

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Contents.

(d). The-draft environmental impact statement

.will include a preliminary analysis which-considers and balances the environmental.and other effects of the proposed action and the alternatives available for reducing or avoiding' adverse environmental or other

[ Emphasis-added].

effects..

10 C.F.R. $51.71 /

Despite this plain mandate of both NEPA and Commission regulations to consider mitigation actions, the Board excluded from the licensing proceeding any NEPA consideration of reactor design alternatives for. mitigation of severe accident consequences.

LEA had contended that " preventative and/or mitigative alternatives to the design, mode of operation, procedures, and/or .

number of reactors presently proposed must~be considered" for NEPA review purposes. See " LEA's SARA /EROL Section 7 contentions (August 31, 1983), LEA's reply to Applicant and Staff Response to Severe Accident Risk Assessment Contentions; " LEA Contentions on the Environmental Assessment of Severe Accidents'As: Discussed in the NRC Staff Draft Environmental Statement, Supplement No. 1",

" LEA Statement of significance of NRC Severe Accident Mitigation l

Systems Contract Documents to LEA Contention DES-5." The Board denied such' contentions. (Tr. 8776-8; 9471-5; Order Confirming l 3/

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Rulings and Schedules made at special Prehearing Conference on NEPA Severe' Accident Contentions," (April 20, 1984).

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_Yet'the Commission itself has tentatively deter-

. mined'that some types of severe accident mitigative alternatives are neither " remote" nor " speculative" (as Applicant argued below) but have been adequately identified as potentially cost-effective to warrant their consideration in new construction

-permit proceedings:

In future CP applications for both pressurized water reactors (PWRs) and boiling water reactors (BWRs), filtered vented containment systems or a variation of such systems, should be:provided if these yield a cost-effective reduction in risk.

The Staff is studying the need for more reliable subsystems for containment heat removal... as '

possible alternatives to filtered venting for prevention of gradual.overpressurization failure of the containment building. The cost-effective-i ness of this alternative should'be considered in the design of plants for-new CP application.

" Proposed Policy Statement on Severe Accidents and Related Views on Nuclear Reactor Regulation," 48 Fed. Reg. 16014 (April 13, 1983) at 16019, 16020.

Programmatic analysis of vent-filtered containments has been underway for ye.ars by the research community. See, e A ,

NUREG/CR-1029, SAND 79-1088, " Program Plan for the Investigation of Vent-Filtered Containment Conceptual Designs for Light Water Reactors" (Sandia Laboratories, 0ct. 1979). Core melt retention design alternatives have also been extensively scrutinized. ~See,

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e.i.,-NUREG/CR-2155, j SAND 81-0416, "A Review of the Applicability of Core Retention Concepts to Light Water Reactor Containments" (Sandia Laboratories, September, 1981).

, But LEA need not rely solely upon these generalized

analyses of mitigation features as support for its conclusion that such features may be cost-effective at Limerick. While

- the Board exduded the analyses from the licensing proceeding, the regulatory staff, by its contractors, has already extensively examined Limerick-specific mitigation design-feature alternatives and concluded that significant reductions in Limerick's severe accident risk are possible

. A low-volume venting strategy can potentially.

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eliminate contribution B and the risk reduction factor isess 6. On the other hand, a combined low-volume /high-volume strategy, similar to i

the-one proposed by Benjamin for a Mark I BWR, can potentially eliminate contributions B and C 4/ and the risk reduction factor isevl7.

4 NUREG/CR-2666, PWR Severe Accident Delineation and Assessment, Chapter 7 "Further Considerations of Mitigative _ Features for

< Specific Plants: Limerick," p. 7-11. 5

t 4/ " Contributions B & C" refer to specified release categories characterized by certain containment failure modes and accident classes, which have been determined to' dominate the Limerick-severe accident latent' cancer fatality risk. Release category "B" was determined to contribute 83.34% of the total Limerick severe accident risk of latent cancers. Thus, elimination of

" contributions B&C" would eliminate-94.14% of Limerick's severe ac-cident latent cancer risk.

5/ A copy of this document was provided by LEA to the Board

-below as' additional bases for its contention.-

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The cost-effectiveness of specific mitigation-design features _is being established for Limerick by analyses under the NRC Staff's Severe Accident Mitigation Systems Contract (NRC 83-092):

c. Summary to date. For Mark II containment as exemplified by the Limerick plant, mitigation requirements (functions) have been identified, including containment heat removal, core residue capture, and retention without concrete attack, and (if ATWS events are to be mitigated).some kind of venting system, candidate components to 4 fulfill these requirements have been selected for 4 preliminary conceptual design and cost estimation.

d. Plans for next period: Complete preliminary designs and assessments for Limerick, and begin final design of selected version.

" Monthly Proj ect Status Report," September 15, 1983, by R&D -

Associates, p. 4 (attached to " LEA's Reply to Applicant and .

Staff Response to Severe Accident Risk Assessment Contentions.")

In March, 1984, the Status Report stated:

c. Summary to date. For Mark II containment mitigation, the necessary requirements have been-established and a choice of systems designed and costed ready for final consideratfon. These systems include capabilities for steam venting of excess 4 hydrogen formation; redundant high capacity heat removal from the containment suppression pool, drywell water sprays, core retention; and vacuum p

breaking. Several versions have'been designed for some components, especially core retention...

the entire cost analysis has been' prepared in three versions, for the cases of a plant already in 1 operation, a plant still under construction, and

for a new plant at inception.

" Monthly Project Status Report," March 15, 1984; by R&D Associ- )

ates, p. 3 (attached to " LEA's Statement of pignificance of NRC

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This analysis itself recognizes that the most signi-

ficant variable for the cost of these mitigation features is whether the plant has commercial operation, is still under con-4 struction, or is a "new plant at inception".

Plant testing and operation, with its attendant in-creasing radioactive contamination of plant systems, may also

adversely affect the practical ability to backfit the Limerick facility with cost-effective mitigation features, and thus

! " irretrievably commit" resources in11ock-step with an original

! design found to pose unnecessary public risk. ,

I In another context, the ASLB below recognized pre- ,

cisely this problem:

. The courts have emphasized that Congrese in-tended that agencies give serious considaration to environmental costs and that this requires agencies'to consider actions to avoid these l' costs. Hence, the courts have stated they will not permit NEPA.to become a " paper tiger" and compliance with it a '.'a pro forma ritual." See

Calvert Cliffs' Coordinating Committee. Inc. v.

i HEC, 449 F. 2d 1109, 1114, 1128 (D.C. Cir. 1971).

1 It is commonly recognized that as construction continues, the cost of corrective action to mini-mize environmental harm nunr increase, even to j 6/ It should be noted that the existence of these alternatives, i and the " cost-effectiveness" review was never publicly disclosed 1

- by the Commission pursuant to its NEPA obligation. Only a Freedom j of Information Act request by LEA's counsel publicly disclosed the monthly' project status reports under the Severe Accident Mitigation

!- Systems Contract.

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the point where sut h action is.not reasonably possible. Id. at 1128; Public' Service Company of New HampH ire'(Seabrook Station,-Units 1 and 2), CLI-78-14, 7 NRC 952, 959-60~(1978): Con--

sumers Power Com)any.(Midland Plant, UnitT T and-2), ALAB-395, 5 1RC.772, 779 (1977). In an: effort

. to comply with Congress's intent in enacting NEPA, the Board intends lto consider these contentions-before construction has advanced soi far-that there is no realistic opportunity for it to order actions which it may determine are necessary to minimize harm to the environment.

' Philadelphia Electric Co'. (Limerick Generating Station,_ Units 1 and 2) LBP-82-92A,.16 NRC 1387, (1982) at 1388, fn.,~ quoting

- Memorandum and Order (unpublished), slip. op. pp. 3-4 (July 14, 1982).

Yet the Board's action below, if uncorrected, thwarts the purpose of NEPA which it recognized pro forma and permits the licensing,-contamination, and operation of a facility without any consideration of design features which may significantly -

l reduce the public risk posed by a facility which can be favorably-l compared only with the risk posed by the Indian Point facility I in New York, I and which can now be described as an "unneces-2 sary risk. " The result of the Board's decision is that the en-l, vironmental review for Limerick required measures to mitigate the impact of noise from pump transformers (See FES, pp. 6-100-101)

. but permitted no consideration of mitigation measures to reduce the risk of human injury and death, despite this Appeal Board's

.,. admonition that "public safety is the first, last, and a permanent i

7/ See, Final Environmental Statement related to the operation of the Eimerick Generating Station, Units 1 & 2", NUREG-0974,

i. pp. 5-116-5-124.

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consideration" in nuclear power _ plant licensing decisions.

Consumers Power Co. (Midland Plant, Units 1 and 2) ALAB-315, NRCI 76-2, 103-4 (1976).

The Appeal Board should therefore order the ASLB below to admit LEA's contention that mitigative design alternatives-should be considered for Limerick.

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THE. BOARD IMPROPERLY EXCLUDED FROM'THE

- ENVIRONMENTAL REVIEW THE' RISK FROM' SABOTAGE 4

The possibility of catastrophic damage to reactors with disastrous public consequences as a result of sabotage'is well known to the' Commission. The knowledge of this risk has promoted extensive regulatory effort to minimize the risk through' imposition of requiremens for, e.g. , physical' security plans and facility design requirements to inhibit-successful sabotage attempts. See generally, 10 C.F.R. Part 73.

Nevertheless,-the risk of sabotage-indsced accidents was categorically exluded from the environmental review of the facility. The Staff's FES stated in pertinent part: "Neither- .

j the applicant's analysis nor the staff's analysis includes the' j.

potential effects of sabotages such an analysis is considered 1 to be beyond the state of the art of probabilistic risk assess-ment." (FES, p. 5-74).

4 In its contentions on severe accident risk assessment ,

l in the Staff's environmental review, LEA contended that the risk from sabotage should be included in the risk analysis. See, e g g.,

! " LEA Contentions on the Environmental Assessment of Severe Acci-

! dents as Discussed in the NRC Draft Environmental Statement, i

[ Supplement'No. 1", (February 13, 1984). Attached as basis.and support for its contention was an excerpt from a review of the i

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applicant's Severe Accident Risk Assessment I performed by Mr.. Steven Sholly of the Union of Concerned Scientists.'/

In the review, Itc. Sholly concluded, inter alia,:

According to a recent NRC report [9] at least.

eleven acts of-insider sabotage were committed at licensed U.S. commercial power reactors between 4 1971 and 1981. . . This statistic answers the oft-repeated assertion that insider sabotage risk car.-

not be estimated. It should be pointed out that we now have more data points for sabotage attempts than for many-events routinely analyzed in PRAs (such as ATWS, for instance). ...(0]ne canEderive a frequency of sabotage attem ts... one obtains a j' frequency of 1:57.5 or rough 1 li60 per reactor-

- year for insider sabotage attempts.

From here on, the analysis would become more in-

. volved one would have to derive a conditional i probability of successful sabotage. One would

also need to estimate the frequency with which various systems would be affected. ...[A] pub-

_ished report gives the minimal cut set of systems  :

which must be protected for a BWR/6 Mark III i

reactor (10), and such a list could also be con-structed for the Limerick reactor without too much difficulty using the LGS PRA and the metho-dology layed (SIC) out in reference #10. ,

I consider that a sabotage risk analysis could be '

performed. Such a study would obviously have large uncertainties. ... The analysis should be

> performed on a "best estimate" basis to ascertain the degree to which sabotage risks contribute to

risk at Limerick.

8/

l The Applicant's Severe Accident Risk Assessment (SARA) and the Staff's environmental Statement treated the risk of sabotage identically. The excluded it from the scope of the assessment.

[

9/

Mr. Sholly has earlier testified as an expert on probabilistic risk assessment in the~ context of reactor sabotage and accident

consequence analysis. See, Consolidated Edison Co. of New York (Indian Pt., Unit No. 2) et. al., 18 NRC 811, 889-390 (1983)

s ,

=.

- 13'- ,

LThe probabilistic risk assessment community, while

.not of unanimous opinion, is concluding that aabotage risk can be assessed. In the Indian Point investigative proceeding, the

Board stated

! " licensee's witness'Garrick believes that the ,

risk from sabotage could be modeled in PRAs, and he indicated that. European PRAs are begin-ning to consider sabotage. (Garrick, Tr. 7045-46).

.... Staff acknowledged that some members of the Advisory Committee on Reactor Safety (ACRS) have ,

) urged Staff, over the last three or four-years,-

to undertake the probabilistic risk assessment.of

sabotage."

1 J

Consolidated Edison Co. of New York, supra n. 9 , at 889.

j- In that proceeding, Mr. Sholly testified that sabotage could be i

a " sleeper", like the external events now known to dominate risk at Indian Point, whose unknown risk could also be a dominant i i contributor to overall risk. (Sholly, Tr. 12,778-9). (Id.,

p. 890). Nevertheless, the Limerick ASLB refused to even consider

the contention, relying not upon any factual determination that .

such an anlysis could not be performed, nor upon any assessment that sabotage could not be a dominant contributor to risk at [

I 1

Limerick}0/ but rather upon various Commission " policy statements j looked at collectively," including the " Policy Statement on Safety i

j Goals for the Operation of Nuclear Power Plants," (" Safety . Goal ^

11 Policy Statement") 48 Fed Register 10772, et. sea, /

l-10 /

Nor could it have, having l

the contention out of hand. precluded any testimony by rejecting 11/

l See, Tr. 8778-9.

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O.

That policy statement states:

r The possible effects of sabotage or diversion of nuclear material are also not presently in-cluded in the safety goal. At present, there is no basis on which to provide a measure of risk on these matters.

Safety Goal Policy Statement, supra, p. 10773, col. 2.

This statement merits several observations. First, it may be that "at present there is no basis on which to provide a measure of risk on these matters "because the risk assessment has not yet been done for reasons quite apart from the " state of the art",

e.g. reluctance to confront the issue.

Secondly, the policy statement does not address it-self to NEPA assessments. Indeed, it expressly prohibits use of the safety goals and design objectives in the licensing process.

48 Fed. Reg. 10775, col. 3. While it does exclude sabotage from ,

the safety goal program, (itself excluded from the licensing pro-cesa) it does not expressly exclude it from NEPA reviews.

The Board also relied upon the Commission's " Proposed Commission Policy Statement on Severe Accidents and Related Views on Nuclear Reactor Regulation", 48 Fed. Reg. 16014 l (April 13, 1983), especially pp.16018 and 16020. See Tr. 8,779.

1

( The proposed policy statement notes that while the Commission "has explicitly excluded sabotage from the safety goal policy statement, the Commission recognizes the merit of providing guidance on plant design that inhibit sabotage."

48 Fed. Reg at 16020, col. 2-3. Further, with respect to Safety Analysis Reports:

, . , - - - ,- , , , , + , - - , - - - - -

. , - . -a,_,s - --..n y., . ,

4 In addressing potential accident initiators (including earthquakes, sabotage, and multiple human errors) where empirical data are limited and residual uncertainty is large dl?/ the use of conceptual modeling and scenario assumptions in Safety Analysis Reports will be helpful.

They should be based on the best qualified judge-ments of experts, either in the form of subjective numberical probability estimates or qualitative assessments of initiating events and casual (sic]

linkages in accident sequences.

48 Fed. Reg. at 16020, col. 3.

It is rather plain that the Board's categorical ex-clusion of this issue from the environmental review was based upon the perceived "large uncertainties" in sabotage risk esti-mation." But scientific uncertainties alone concerning the magnitude of risk cannot justify the total exclusion of the risk from NEPA review. CEQ regulations directly address the NEPA +

obligations of the Commission under circumstances of scientific uncertainty:

81502.22 Incomplete or unavailable information.

When an agency is evaluating significant adverse effects on the human environment in an environ-mental impact statement and thero are gaps in

• relevant information or scientific uncertainty, the agency shall always make clear that such in-1 formation is lacking or that uncertainty exists.

(a) If the information relevant to adverse im-I pacts is essential to a reasoned choice among al-ternatives and is not known and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the environmental impact statement.

12/

l

' Indeed,

" residual despite the limitation of empirical data and large uncertainty" , risk from carthquake-initiated accidents was considered extensively by the NRC Staff in the Limerick en-vironmental review. See, e.g. " Final Environmental Statement related 1 and 2",

to the operation of Limerick Generating Station, Unita NUREG-0974, pp. 5-74-5-78.

i .

(b) If (1) the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are exorbitant or (2) the information relevant to adverse impacts is im-portant to the decision and the means to obtain it are not known (e.g., the means for obtaining it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty.

if the agency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurrence.

Indeed, LEA need not rely upon those CEQ regulations alone in this proceeding, 3/ because NEPA itself imposes the obligation to prepare a worst case analysis where uncertainties exist. See Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F. 2d.1475, 1478 (9th Cir. 1983)(" worst case analysis" re-quired even though original environmental impact statement pre-pared before effective date of CEQ regulations, because regulations merely codified prior NEPA case law): Sierra Club v. Sigler, 695 F. 2d. 957, 971 (5th Cir. 1983) (The "CEQ's worst case analysis merely codifies ... judicially created principics"):

13/

Although they are binding on administrative agencies Sierra Club v. Sinier, 695 F. 2d. 957, 972 (5th Cir. 1983).We antict-pate Applicant and Staff argument that these CEQ regulations are inapplicable to NRC analyms of severe accidents contained in its environmental statements. See, 49 Fed.

Reg. 9352 (March 12, 1984), at 9356. Such an argument need not detain us long. While LEA disagrees with the Commission's view of the extent to which the CEQ regulations are binding on the Commission, (See, Peoplo Against Nucicar Energy .

v. U.S.

Nucicar Regulatory Commission, 678F.2d. 222, Z31 (195Z), rev'd on other grounds, U.S. (1983)) the inclusion of sabotage risk in the manner contended for by LEA is consistent with the Commission's own " Nuclear Power Plant Accident Consi-derations under NEPA" 45 Fed. Reg. 40101 (June 13, 1980). Second, as is discussed infra, the obligation to perform a " worst-case" analysis is not merely imposed by possibly "non-binding"itself.CEQ regu-lations, but is a statutory obligation imposed by NEPA

C' 17 -

Save Our Ecosystems v.' Clark, F. 2d. , 20 E.R.C. 1607 l (9th Cir. Jan. 1984)(requiring worst use analysis of carcino-genic effects of herbicide spraying even where adverse health effects unlikely).

Thus, even if one assumes that a strict'probabilistic assessment of sabotage risk were not feasible,'nevertheless, a

" worst case" analysis could be performed with the same "best qualified judgements of experts", or " subjective numerical-probability estimates" with " scenario assumptions" (48 Fed. Reg. 16020, col. 3) as the Commission's proposed policy statement would require for new Safety Analysis Reports.

We may well. expect both applicant and NRC Staff to argue that no assessment of sabotage risk is required, because ,

l the risk is "very low". Such an argument, of course, is a ludi- ,

crous prejudgment of the results of precisely the assessment l which the contention called for.

I

} In any event, " remoteness" is an impermissible criterion i

for categorical exclusion of potentially catastrophic events

j The remoteness problem is instead addressed by i mandating the preparation of a worst case ana--

! lysis and indicating to the decision maker "the probability or improbability of its occur-

, rence '. [ citation omitted).

s j Sierra Club v. Sigler, supra, at 974.

LEA demonstrated adequate basis for its contention that the risk of sabotage could, and should, be included in the environ-mental review for Limerick. The categorical exclusion of any assess-1 .

l I

i

ment-of this risk, either through available probabilistic risk r: assessment techniques, or through a " worst-case" analysis, was violative of the mandates of NEPA.

2.

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'THE. BOARD IMPROPERLY ~ EXCLUDED FROM NEPA' l CONSIDERATION OF SEVERE ACCIDENT IMPACTS THE SOCIOECONOMIC IMPACT OF COMPENSATION OF VICTIMS AND TOTAL INDUSTRIAL ' IMPACTS t

LEA contended.below-that the Staff's Environmental Statement: improperly failed to disclose or consider (1) "The socio-economic cost of compensation required for health effects induced by-radiation-exposure" (DES-4 (A)(4)), and (2) "indus-trial impacts beyond the first year following the accident, and quantification of costs beyond the ' output loss' mentioned in DES, p. 5-46" (DES-4(A)(5)). See " LEA Contentions on the Environmental Assessment of Severe Accidents As Discussed in the NRC Staff Draft Environmental Statement, Supplement No. 1."

The Board rejected these. contentions in its " Order Confirming Rulings and Schedules Made at Special Prehearing Conference on NEPA. Severe Accident Contentions" (April 20, 1984).

See also, Tr. 8773. The Board reasoned that the impacts were-

' speculative, both in terms of occurrence and in terms of any reasonable quantification, even given that occurrence, and-they are remote in terms of our reasonable proximity." Id.

The NRC Staff took the position at the prehearing conference that these contentions were admissible. Tr. 8688.

Once the preparation of an environmental impact state-ment is required, it must discuss economic or. social effects that are interrelated with other environmental effects.

40 C.F.R..Il508.04.

-Indeed, in its FES discussion of severe accident risks, the NRC Staff had included a discussion, albeit limited, of economic and societal impacts. 'See FES, pp. 5-93. With respect to industrial impacts of severe accidents, the FES states:

Only the impacts occurring during the first t year following an. accident are considered.

The longer term consequences are not considered because they will vary widely depending on the level and nature of efforts to mitigate the accident consequences and to decontaminate the physically affected areas.

Id., p. 5-106.

Other economic impacts and risks were discussed:

There are other economic impacts and risks

-that can be. monetized but that are not included in the cost calculations discussed earlier.

These are accident impacts on the facility itself that result in added costs to the public '

(ratepayers, taxpayers, and/or shareholders).

These costs would be for decontamination and repair or replacement of the facility, and re-placement power. Experience with such costs is currently being accumulated as a result of the Three Mile Island accident.

Id., p. 5-107.

Nevertheless, the Staff, with approval of the ASLB, chose to ignore additional significant economic impacts that can be known with reasonable certainty to occur in the aftermath of a severe accident at a nuclear power reactor facility.

Compensation for Accident Victims The severe accident risk assessment probabilistically calculates, inter alia, the number of early fatalities, latent _;

non-thyroid cancer fatalities, early radiation injuries, latent t

- - , . . ~ , . . . - - . . . - . - . . - . . . , , . , . - . - - - , _ _ . - . - - . - , . - , . _ , - .

thyroid cancer fatalities and genetic defects projected to be caused by severe accidents at Limerick. Thus, the number of victims and the general types of their injuries is not 'at all

" speculative" in the risk assessment sense, for they have been calculated probabilistically. The Staff, at least, has suf-

~ficient confidence in such calculations to advance them for NEPA decisionmaking purposes.

Neither is the likelihood of recovery of compensation by nuclear accident victims " speculative". As a matter of law, compensation will be paid to such victims. The Price-Anderson Act / establishes a statutory scheme which, inter alia, limits the liability of the industry, waives all legal defenses to '

liability in the event of a severe accident, transfers all -

t claims to a single federal district court, requires payments by each reactor owner to a common fund toward the cost of com-pensating victims, and establishes a structure for administering the claims of victims.

The United States Supreme Court in Duke Power Co. v.

Carolina Environmental Study Group, U.S.__, S. Ct.__,

57 L. Ed. 2d 595 (1978), on a challenge to the constitutionality of the ASC1, concluded:

The Price-Anderson Act not only provides 14 /

Act of Sept. 2, 1957, Pub. Law No.85-256, 71 Stat 576, as amended (codified at 42 U.S.C. 32210).

l I

f .

, , - . , - - - , . - , , - - - - - , - - - - - - - . - - - - - - - , ~ ~ - ~ ~ , - - ~ - - - ~ - - ^ - - - ~ - - ~ ~ ~ ~ ^

- t

~

a reasonable, prompt and equitable mechanism

-for compensating victims of a catastrophic nuclear incident, it also guarantees a level of net compensation-generally exceeding that recoverable in private litigation. Moreover, ,

the Act contains an explicit congressional-committment to take further action to aid victims of a nuclear accident in the event that the

! $560 million ceiling on liability is exceeded.

i "

j 57 L. Ed. at 623-624.

i j The legislative history of the 1975 renewal of the Act demonstrates Congress' appraisal of the likelihood of recovery, and belies any suggestion by the Commission now that compensation 4

recovery by nuclear accident victims is " speculative":

. The primary defect of (a non-renewal of the Act] is its failure to afford the public either i a secure source of funds or a firm basis for legal liability with respect to new plants.

... The present assurance of prompt and equit-

! able compensation under a pre-structured and .

- nationally applicable protective system would ,

give way to uncertainties, variations, and potentially lengthy delays in recovery. ...

The prospect of inequitable distribution would

. produce a race to the courthouse door in con-trast to the present system of assured orderly and equitable compensation. ,

Duke Power Co., supra, 57 L. Ed. 2d. at 621-622, quoting

" Hearings on HR 8631 before Joint Committee on Atomic Energy",

! 94th Cong., 1st Sess., 69 (1975).

In view of the probabilistically calculated numbers {

i .

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• i l

7

)

{

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-e

=.

1 of severe accident victims,15/ there is ru) reasonable doubt that at the lower end of the probability scale, and at the upper end of the consequences magnitude, the available compensation fund of $560,000,000 vill be exhausted, and Congressional appropria-3 tions of additional sums will be made. The '* worst case" analyses mandated by NEPA (discussed infra, pp.15 to l7 ) requires the

, l consideration and disclosure of these facts.-

The result of the exclusion of victim compensation from NEPA review is that while replacement power costs of $400,000,000 l l

{ have been disclosed and considered (FES, p. 5-107), the costs

- L of compensation of accident victims nearly $200,000,000 in j

j excess of that amount will not be.

j Industrial Impacts Beyond First Year -

The Staff's FES recognized that:

A severe accident that requires the inter-

, diction and/or decontamination of land areas

is likely to force numerous businesses to

temporarily or permanently close. These i closures would have additional economic

! effects beyond the contaminated areas through i the disruption of regional markets and sources j of supply.

15/ Earl

! (FES, p f fatality calculations 87 (Figure range 5.4. (e)): from 0 to 70 000 persons latentcancerfataIitiesex-

cluding thyroid range from 0-30,000 (FES, p. 5-86 (Figure 5.4(d))

latent cancer fatalities - thyroid only - range from 0 to l' 7,000 (Id.): early injur

p. 5-88 (Figure 5.4(f)).y casesThus,range from 0range the total to 200,000 of such(FES, victims

! requiring compensation ranges probabilistically from 0 to

307,000.

2

\-

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4 FES,1p. 5-102. Estimates of economic impact risk were made-using the risk assessment consequence model which calculates land areas (1) interdicted, (2) to be decontaminated, (3) in which crops are interdicted, and (4) in which milk is

' interdicted. Id.

Despite.the recognition that a severe accident would likely require the permanent closure of numerous businesses, and the explicit CRAC I calculation by the Staff.of land areas I

to be interdicted ~for periods in excess of 30 years the staff admittedly did not consider them in the FES. Thus, while the impact of business closures up to one year was con-sidered, the economic impact of permanent closures were not. I While the Board deemed this impact " speculative", such a view is largely indefensible in the face of probabilistic calculations of specific land area interdiction by time period, distance, and sector, together with the extensive land use data 6/ Consequences of Reactor Accidents Code, utilized in the FES.

17/ See Staff Testimony of Hulman, et.al., ff. Tr. 11 148 Table 3.

The probability that 1,000 square meters of. land would,be #inter-dicted for more than 30 years is insignificant 1y different than the probability that 30,000,000 square meters will be inter-dicted for more than 30 years.

18/ It is difficult to ima ine that a business required to close for a period in excess of t irty years will ever reopen unless re-located from the area. In addition, farmland interdicted for a time period in excess of thirty years will obviously suffer a total output loss for that period of time.

_ _ . _ _ . . _ . _ _ . _ _ _ . . . ..___._m__________._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - ______ _ _ _ - _ _ . _s

-s

]

available in the applicant's environmentalLdocuments.19/

-Indeed, the analysis of economic disruption permitted by such specific available data is far more detailed, objective,-and less " speculative"than that of-generalized economic and physical deterioration caused by urban blight which has been held to be a cognizable " secondary impact" under NEPA. See, e.g. City of Rochester v. U.S. Postal Service, 541 F. 2d. 967,973 (2d. Cir..

1976) (danger of economic and physical deterioration in downtown area): Trinity Episcopal School Corp. v. Romney, 523 F. 2d. 88,-

93-94 (2d Cir. 1975)(Displacement and relocation of residents, decay and blight, implications for city growth policy and neighborhood stability).

The difficulty (if any) in quantification of industrial ,

impacts beyond the first year does not justify their utter ex-clusion from consideration. As discussed infra, an agency is to face such uncertainties by the preparation of a " worst case" analysis if the uncertainties are so extensive as to preclude the meaningful analysis of the impacts otherwise.

19/ Including a listing of industries within 5 miles of the site with 10 or more employees by number of employees, products, and location. For example, it is noted that Hooker Chemical Co., employing 750 persons, in only 1.5 miles for the site.

l l

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NEITHER THE FES NOR THE RECORD OF DECISION BELOW CONSTITUTES AN ADEQUATE DISCLOSURE AND CONSIDERATION FOR NEPA PURPOSES OF THE RISK OF

._ HUMAN; HEALTH IMPACTS FROM SEVERE' ACCIDENTS The Commission's'5tatement of Interim Policy on Nuclear Power Plant Accident Considerations under the National Environmental Policy Act" 0/ requires, inter alia, that Environmental Impact Statements shall include a reasoned consideration of the environmental risks (impacts) attributable to accidents at the particular facility...within the scope of each such statement.

In the analysis and discussion of such risks, approx-imately equal attention shall be given to the proba-bility of occurrence of releases and to the probability of occurrence of the environmental consequences of those releases.

The environmental consequences of release whose probability of occurrence has been estimated shall also be discussed in probabilistic terms. Such con-sequences shall be characterized in terms of potential radiological exposures to individuals, to population groups, and.where applicable, to biota. Health and safety risks that may be associated with exposures to people shall be discussed in a manner that: fairly. re-flects the current state of knowledge regarding such risks.

Further, The National Environmental Policy Act (NEPA) places upon an agency the obligation to consider every signi-ficant aspect of the environmental impact of a aro-posed action, and requires an EIS to disclose tie significant health, socioeconomic and cumulative con-0/ 45 Fed. Reg. 40101, et, seq. (June 13, 1980)

Ef ,

sequences of the environmental impact of a pro-posed action.

Baltimore Gas and Electric Co., et al. v. Natural Resources Defense Council, __U.S.__, (1983) slip op, at 9, 19.

"Gonetic changes" Among the " health and safety risks that may be asso-ciated with exposures to poopic" is the risk of radiation-induced genetic disorders in succeeding generations. The risk of

" genetic offects was not explicitly listed or displayed in the FES (Partial Initial Deciefon, slip op., p. 182, Finding F-12),

although it constitutos a greater risk than any other health offect analyzed in the FES, 21/ 1 .o. , 2.6 x 10-I genetic "offects" por reactor year of operation.22 / Yet nowhere disclosed in the ,

FES or in the record of decision is what those " genetic changes" are.

The Staff witness, Mr. Branigan, testified that the genetic effects included:

... all disorders that could cause some serious handicap during the lifetimo of an indi-vidual. Exam)los of genutic offects that are i included in t'To risk estimator are diseases and abnormalities caused by a dominant mutation.

i For examplo, extra fingers, extra toos. Diseases 21 / (Id., p. 183, Finding F-14) 22/ Thus, for operation of both units at Limorick, over the operating life of 40 years roquestod by the Applicant, the " risk" is 20.8 genetic changes" expected.

caused by recessive mutations. For example, sickle cell anemia. Abnormalities caused by <

chromosomal aberration. For example, Downs syndrome, congenital anomalies, anemia, dia-botes, and schizophrenia.

Those are exam are included. ples of the types of. things that (Branagan, Tr. 11,255).

The disclosure that there is a risk of " genetic changes" is largely meaningless without a discussion of the human physical manifestation of thoso "gonatic changes". This l 1s because the " genetic changes" themselves are events occur-1 ring at a microscopic level of physical reality, and per so, are not significant events. Only the physical manifestation of those " genetic chenges" in terms of physical disorders or disease is meaningful and significant in human experience.

• The risk to human health and safety of genetically based disease and disorder has theroForo not been adequately disclosed or considerud for NEPA purposes.

Non-Fatal Cancern The FES did not disclose the risk of cancors without a fatal outcome which is posed by the operation of Limerick, 1

although this risk was admitted to be greator that the other health offects analyzed by tho Staff in the FES. (llulman, Tr. 11,248: Board Finding F-14).

}.

29 -

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' Benign Thyroid Nodules'and' Hypothyroidism The ridk posed.by Limerick of radia' tion-induced

. . i benign thyroid; nodules and hypothyroidism was nowhere dis- ,

closed in the FES (Tr. 11,250s. Board Finding'F-1.4) although

-this risk.was greater than'the other health effects risks analyzed in the FES. ' (Cf. Tr. 11,248; 11,261-23 Board Finding F-17)_

Spontanecu's Abortions The risk posed-by Limerick of radiation-induced spontaneouscabortion in women was nowhere disclosed in the FES (Board Finding F-12: Tr. 11,252), although this risk is greater than any health effect risk analyzed in the FES, with the sole exception of genetic effects. (Tr. 11,2583. Board .

Finding F-15)

Sterility While sterility is a health risk of severe accidents '

at Limerick, it is nowhere disclosed in the FES, although it is greater than any health risk analyzed in the FES with the sole exception of genetic effects.23 / (Tr.11, 248 3 11,261: Soard Finding F-12, F-16).

I In males,'this risk is 1.6 x 10-1 per reactor-year of

, operation. (Hulman, et. al., ff. Tr. 11,148, p.11). Thus, for both units over an operational life of 40 years, the total risk is 12.8 cases of sterility expected. In females, this risk is 3 x 10 Z per re' actor year of operation (Id.).. Thus,

~

. for both units over an operational life of 40 years, the total

, risk is^2.40 cases of sterility expected.

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Developmental Impairment'of Children L .The risk of severe accidents at Limerick includes

. impairment of development of children due to in-utero exposure of_ embryos and fetuses, including microcephaly, mental retarda-

' tion, growth retardation, blindness, cleft palate and spina-bifida. (Tr. 11,264-5 11,267: 11,317). These health impacts were not explicitly considered by the Staff or disclosed in the FES (Board Finding F-20). While the Staff opined that its more conservative early injury whole body dose threshold provided a

" bounding" calculation which thus included all other small im-pairment risks, (Tr. 11,264-72), this referred to increasing the number of cases of abdominal-vomiting.

(Tr. 11,268-9). It is difficult to comprehend how these cases of " vomiting" have any- -

thing to do with disclosure of developmental defects in children-such as microcephaly and spina bifida.

l As the Board noted, "the record is clear that not all latent health effects of severe accidents at Limerick were 4

. explicitly disclosed in the FES". Partial Initial Decision, slip op., p. 191.

Further: "We do believe an explicit discussion of J

all the health effects in the DES and FES would'better permit the~ public (as opposed to an informed professional) to under-stand all factors considered in the risk assessment." _Id .

Despite the plain failure of the NEPA documents circu-lated for public comment to disclose or consider any of these health risks, all of'which are greater than any risks which were

~

.- . . _ ~ . , _ . . , .

l 31 -  !

i considered in the FES, the. Board offers no remedy, concluding

. that the disclosure in its opinion will suffice.

The Board Improperly Concluded That the FES is Deemed Amended By its Decision In reliance upon precedent that a defective FES can be " cured" by receipt of additional evidence, the* Board con-cluded that no supplement to-or recirculation of the FES was 1 necessary. Partial Initial Decision, slip op. pp. 178-179.

I However, that precedent rested upon a former Commission regulation, 10 C.F.R. E 51. 52(b)(3), which provided inter'alia:

To the extent that findings and conclusions (made i in an initial decision of the presiding officer in a license issuance proceeding] different from those in the final environmental statement pre- '

pared by the staff are reached, the statement will be deemed modified to that extent and the initial decision will be distributed as provided in 951.26(c). -

However, that regulation no longer exists and it is inapplicable to this proceeding. In the recodification of 10 C.F.R. Part 51, the regulation was never readopted. See 49 Fed. Reg. 9352, et. seq. (NWrch 12, 1984). While the new 10 C.F.R. 35 1.102 does not expressly' require the recirculation of the FES under circumstances where the original document failed to disclose significant human health risks, it provides 1

! no adequate alternative. No public comments may be offered on the new information provided in an " initial decision". No notice of-availability of the decision will be published in l 1

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THE BOARD'S-CONCLUSION THAT APPLICANT'S "0N-SITE" EMERGENCY PLANS ARE~ ADEQUATE VIOLATES COMMISSION REGULATIONS, THE ATOMIC ENERGY ACT,AND THE ADMINISTRATIVE PROCEDURE ACT The Board's Failure to Determine the Adequacy of Applicant's Emergency _ Facilities and its Delegation to the Staff'of Determination of Issues'in Controversy Before

the Board Violates Applicable Law.

LEA had contended that the Applicant had not shown that its on-site emergency facilities were adequate:

l Contention VIII-8 The LNGSEP fails _to demonstrate that adequate emergency facilities and equipment to support ,

emergency response are provided and maintained as required by 10 C.F.R.8 50.47(b)(8), especially in that:

(b) The Plan's descriptions of the Emergency Operations Facility (Plan 8 7.1.2), the Technical Support Center (Plan H 7.1.3.), the Operational

, Support Center.(Plan 3 7.1.4), and emergency equipment and supplies are-all insufficient to meaningfully assess compliance with 10 C.F.R. 9 50.47(b)(8) and to evaluate the facilities with r'espect to the criteria of NUREG-0654,-

Supplement 1 to NUREG-0737 (88), and NUREG-0696.  ;

j Intervenor contends the applicantLhas not demon-

, strated that the facilities proposed are adequate.-

Applicant's response to Q.-.810.30 states that the plan will be expanded when final information is available on these facilities. i Basis

10 C.F.R. 8 50.47(b)(8); Part 50, A pendix E I RUREU-0654, Criteria H.1, 2.9, NUREG-0696, p' Functional

-Criteria for Emergency Response Facilities: NUREG-0814, '

pp. 2-15: Supplement 1 of NUREG-737 8 8. 25/

l l25/ This contention was admitted by the Board at Tr. 4839.

r

In its decision, the Board acknowledged that the criteria to be used in judging the adequacy of the facilities are NUREG-0696 and NUREG-0814. I It concluded that "an outside observer such as an intervenor could be both interested in the outcome of the Staff's review [of the facilities] and in a posi-tion to reasonably and fruitfully disagree with the Staff's review "because it is crucial that these facilities be adequate to the uses which would be made of them in an emergency. More-over, determining their adequacy would appear to require some judgment . . .[.]". Partial Initial Decision, slip op,., p. 133.

With one hand, the Board granted LEA an opportunity to be heard on the issue of Applicant's emergency facilities by admitting its contention, scheduling an evidentiary hearing thereon, and permitting examination of witnesses. With its other hand, the Board took the opportunity away by closing the record after a meaningless hearing in which not even the Staff could yet ascertain the facilities' adequacy because so much work was yet to be done. See Tr. 10,064-10,073.

At the time of the hearing, no more information was available concerning these facilities than LEA had at the time the Board admitted the contention. The Applicant's testimony merely referred to the emergency plan descriptions (E 7.1.2.,

b/ See Partial Initial Decision, slip op,., p. 133. The Board refers, of course, to " Functional Criteria for Emergency Response Facilities", NUREG- 0696, and" Methodology for Evaluation of Emergency Response Facilities" NUREG-0814, The Board's reference to'NUREG-0818 was an apparent error.

l l

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35 -

7.1.3., 7'.1.4.)- which LEA's contention had found totally deficient, and promised 'no additional in. formation other -than a

" floor plan which will in'dicate positioning of.particular personnel." See Boyer, 'et. al. ,. ff. Tr. 9972 at pp. 6-7.

The Staff testimony demonstrated'that as of the hearing,'the Staff simply had not yet' evaluated the facilities against the applicable criteria. (See Sears, Tr. 10, 061-73) and that its assessment of the facilities' adequacy would depend upon future NRC Onsite Emergency Response Facilities Appraisal

< Visit (Sears, ff. Tr. 9776 at p. 10). I As the Board noted, "The Staff's review was still far from complete". PID, p. 132.

Faced with such a meager record, LEA suggested that resolution of the contention await the appraisal visit report, ,

with additional opportunity to propose findings. See " LEA Proposed Findings of Fact and Conclusions of Law in the Form j of a Partial Initial Decision Relating to LEA's Onsite Emergency I

Planning Contentions", at p. 23.

27 / While not a part of the record below, because not then issued, the Staff ultimately issued its report of that " appraisal visit" on August- 14, 1984. 'See, " Emergency Preparedness Appraisal (50-352/84-18), NRC Region I, August 14, 1984. The rtaff concluded-the numerous elements'of the emergency facilities were deficient, and has required numerous improvements. In addition, no findings were made against the criteria of NUREG-0814, and one cannot as-certain whether a full "NUREG-0696" review was ever made by the Staff, because some criteria are simply not addressed.

28/ This proposal was generous. On the state of the record astit

. stood, the Board factually had no choice c.xcept to conclude that

-the Applicant had not shown compliance with the regulatory criteria, as was its burden.

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'Instead, the Board' simply defaulted in'its obligation to make~ findings on this issue, and made neither findings of adequacy nor inadequacy. See-Partial Initial Decision,islip. oja. ,

pp. 132-134,. Board Findings E-42'- E-48..

The failure to make a finding of adequacy was per-

- fectly understandable in view of the utter lack of a record upon which to ascertain the facilities' adequacy, and in view

- of the Staff's own inability to timely determine their adequacy; what is not permissible is the Board's exclusion of the issue from the adjudicatory process by closing the record, I and thereby delegating to Staff resolution the question of the-

/

adequacy of these facilities.

29 / Partial Initial Decision, p. 133.

30 / The Board also concluded that "perhaps decisive,. litigation on emergency planning is first and foremost concerned with

the plans).yet even though a certain amount of information about these three facilities is available in as7.1.2, 7.1.3

> and 7.1.4 of the onsite Plan, LEA:has raised no issue based on any of this information." Partial Initial Decision, slip. Jo . ,

p._134. With due. respect to the Board, this justification for closing the record is senseless in view of the fact.that the ad-mitted' contention complained precisely about'the inadequacy oY the descriptions relied upon by the Board to close the record.

Those descriptions are quite useless for decision-making purposec.

- With respect to the focus on " plans" rather than the' facilities themselves, the applicable guidance, NUREG-0654," Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of-Nuclear Power Plants"

. establishes a planning standard that "Each licensee shall establish'a Technical Support Center and an onsite operations ,

. support center (assembly area) in accordance with NUREG-0696,.

Revision 1." UUREG-0654, p. 52. Indeed, it would be absurd 4

-if plans;for facilities were an adequate substitute for the facilities themselves.

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. 'This action contradicts the. Board's recognition elsewhere in this proceeding of the impropriety of such dele-gation:

When governing-statutes or regulations require a licensing board to make particular. findings before granting an applicant's' requests, a board may not delegate its obligations to the Staff. The respon-

. sibilities of the: boards are independent of those 4of the Staff under the Commission s system, and the i

Board's duties cannot be fulfilled by the Staff, however. conscientious its work may be. 8/8/ Cleve-land Electric Illuminating'Comaany'(Perry Nuclear Power Plant, Units 1 and 2), ALAB-298, 2 NRC 730, 737 (1975) i

, Partial Initial Decision, slip, on., pp. 92-93.

This Appeal Board has also stated:

The Commission in fact has long held that,"[als

a general proposition, issues should be dealt with in the hearings, and not left over for later '

. (and possibly more informal) resolution." Con-solidated Edison Co. v. New York (Indian Point Station, Unit No. 2) CLI-74-23, 7 AEC 947,991 (1974). "[T]he ' post-hearing' approach should be employed sparingly and only in clear cases" - for example, where " minor procedural deficiencies" are involved. Id., at 952, 951 n. 8.

Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), 17 NRC 1076, 1103 (1983). I While.the Board has some authority to make " pre-dictive findings" in emergency planning matters,-(Id.) it may

, not simply fail to make. findings, and leave the matters up to the Staff. I 2

31/ ' Plainly, the facts of this case do not meet this standard -

particularly'in view of the Board's recognition that a determi-nation of.the adequacy of the. emergency facilities requires "some 7 jud Partial Initial Decision,(slip.op,. p. 133.

32/gment." '

- Indeed, " predictive-findings" of adequacy on this record would have been seriously . contradicted by the Staff's findings of numerous deficiencies which require correction.See' infra, p.35 , n. 27 .

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i 38 -

Such an action violates Section 189(a) of the Atomic Energy Act, I and 88 5 and 7 of the Administrative Procedure Act (APA).

8189 of the Atomic Energy Act has been uniformly inter-preted-to grant interested persons who request one, an "on the record" hearing. See Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, F. 2dm__y(82-2053,,D.C. Cir., 1984),

slip. op. pp. 16-17, n. 12.

The Act prohibits the Commission from limiting the scope of the operating licensing hearing by "remov[ing] from the hearing required by Section 189 (a) material issues relevant to its licensing decision." /

i Id., slip. op. p. 30. What the Commission is unauthorized to do by rulemaking, it cannot do by quasi-judicial decision-making.

The Board's action prejudices LEA because it destroys the safeguards of adjudication on an issue it properly presented to the Board for adjudication. The action denies LEA's right to-33 /

8189(a) of the Act, as amended, Pub. L. No.85-256, 57, 71 Stat. 578, (1957), Pub. L. No.87-615, g2, 76 Stat. 409 (1962),

Pub. L. No.97-415, 812(a), 96 Stat. 2073,1d! U.S.C. g2239(a)(1) .

34 /

Pub. lL. 404,60 Stat. 237-244 (1946), as codified. Pub. L.

No.89-554, 80 Stat. 378 (1966), as amended Pub. L. No. 90-23, 81 Stat. 54 (1967), 5 U.S.C. g554, 556.

35 /

.There can be no question that adequacy of applicant's emer-gency facilities is a " materia 1' issue relevant to a licensing decision", as such adequacy is required by 10 C.F.R. 850.47 (b)(8),

4 and 10 C.F.R. Appendix E, IV, E. (8).

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1 submit evidence on the Staff's review, to. confront and cross--

i examine witnesses, and to propose meaningful.findin's g on the adequacy of the facilities - all safeguards granted by the

. APA,30I on an issue which the Board itself acknowledged was

- " crucial".

The Board's order closing the record on LEA's' con-tention VIII - 8 should be reversed, and an adjudicatory op -

portunity afforded to fully litigate the adequacy of 4

the Applicant's emergency facilities.

The Board Improperly Concluded that Applicant's Medical Care Arrangements Complied with 10 C.F.R. E 50.'47 Under " general emergency" conditions, Applicant's planning for medical care for on-site contaminated injured -

victims would require persons seriously injured to travel nearly an hour before reaching hospital care. All witnesses agreed that it would be " prudent" to make additional hospital care arrangements with any one or more of the some twenty hospitals closer to the site. Nevertheless, the majority of the ASLB /

declined to require this prudence.

Applicant's plans rely upon emergency care service of two hospitals:

Pottstown Memorial Medical Center ("PMMC")

1 and the Hospital of the University of Pennsylvania (" HUP").

36 / 5 U.S.C. 88556, 557

{

7/ Judge Lawrence Brenner dissented on this issue.

See Partial Initial Decision,' slip. ojl., p. 149. i I

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Applicant has an agreement with only one: PMMC, (PECO Exhibit 43).

For HUP emergency care, Applicant must rely.upon it's agreement

. with Radiation Management Corporation ("RMC")(PECO Exhibit 42),

which, in turn, has an agreement with HUP'(PECO Exhibit 40) to accept RMC referrals.for evaluation and treatment of "radia-tion injuries" from the Limerick site.

PMMC is the primary treatment center for on-site con-taminated injured victims; where PMMC's limited resources were unable to. provide required specialized personnel and equipment, HUP would receive the victims. (See Partial Initial Decision, slip. op., p. 141, Board Findings E-62, E-63).

However, PMMC is less than 2 miles from the Limerick i reactor site. (Linneman,.Tr. 9831; Board Finding E-63), and HUP, located in. center Philadelphia, is at least 45 minutes away. (Linneman, Tr. 9844; Board Finding E-63).

As a result of its close proximity to the reactor, in a general emergency PMMC could not accept contaminated injured t

victims from the site because it would be preparing to evacuate. 38 /

1 This unavailability was admitted by the witnesses (Tr.-9843-44) and PMMC's own evacuation plans for a Limerick general emergency 38/ It is the fixed nuclear facility incident evacuation policy of the Commonwealth of-Pennsylvania to evacuate the plume exposure EPZ in a 360* radius around the plant, and not merely in the downwind sections. Applicant itself'would recommend the evacua-

, tion of at least the area in a 2 mile. radius around-the plant in the event of a general emergency. (Tr. 9833) i n

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1 require ~the. referral of patients to hospitals outside the

' plume. exposure EPZ,and th'e shutdown of physic'al plant systems.

(Tr. 9834-6).

10 C.F.R. 8 50.47(b)(12) establishes'the following planning standard required:

i Arrangements are made for medical services for 4

contaminated injured individuals.

39 The " specific criteria" of NUREG-0654 / addressing this planning standard is evaluation criterion L.1 :

-Each organization shall arrange for local and back-

' up hospital and medical services having the capa-bility for evaluation of radiation exposure and i uptake', including assurance that persons providing these services are adequately prepared to handle contaminated individuals.

NUREG-0654, p. 69. ,

i Both Applicant and' Staff witnesses concluded that the primary medical concern for " contaminated injured" persons ,

is with any traumatic injury; thus, a hospital close to the injury site is " optimum". (Linneman, Tr. 9906). In fact, Applicant's chief. witness admitted that good medical pra'ctice would require that a traumatically injured patient be sent to the closest available hospital (Linneman, Tr. 9857), and that for planning purposes "we would be remiss in jumping over a f

39/ NUREG-0654, " Criteria for Preparation and Evaluation of 4 Radiological Emergency Response Plans'and Preparedness in l

-Support of Nuclear Power Plants". l l

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42 -

close hospital to set up a hospital' farther away" (Linneman, Tr. 9906).

Notwithstanding this-uncontradicted expression of medical opinion, the Applicant relies in:a general emergency on a hospital 45 minutes away for treatment of serious trau-matic~ contaminated injury, in~ clear violation of good medical

. practice.

Despite the Board's majority' agreement that "it would be prudent to make more formal arrangements with a third hospital, one less vulnerable to evacuation than Pottstown Memorial, and more accessible (closer) than the University of Pennsylvania" (Partial Initial Decision, slip. op., p. 148, _

Board Finding E-74), it did not require this exercise of

• prudence. Its failure to require admittedly " prudent" measures j violates Commission guidance, and rests upon assumptions fundamentally at odds with the underlying premises of the NRC's emergency. planning regulations. ,

The majority stated its rationale as follows:

It is our view that the probability of Pottstown Memorial being unavailable is remote, that there are nineteen other hospitals with claimed capa-bility for handling " contaminated injured" on an ad hoc basis in an emergen~cy,.and the Potts-town Memorial Staff, RMC and University of ,

Pennsylvania specialists can provide assis~tance . . .

Partial Initial Decision, ' slip. op., p. 148, Finding E-74.

But the Board may not rely upon the " remoteness" of a general' emergency causing PMMC's unavailability in judging the i

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-adequacy.of reliance upon it, for The underlying assumption of-the.NRC's emer-gency planning. regulations in 10 C.F.R.

g 50.47 is that, despite application of stringent safety measures, a serious nuclear. accident may occur. This presumes that;offsite individuals-may become contaminated with radioactive material'or-may be exposed to dangerous levels of radiation-or perhaps both. Planning for emergencies is required as a prudent risk re-duction measure for these individuals. t Southern California Edison Co., et. al. (San Onefre. Nuclear Generating Station, Units 2 and 3) CLI-83-10, 17 NRC 528 (1983) at.533.

1 Thus, any analysis of the adequacy of applicant's medical arrangements must assume the unavailabilty of PMMC. /

Given such an assumption, the majority would rely.

upon the mere existence of. numerous other area hospitals, with-out any showing that they are capable of handling contaminated injured victims. This reliance is also. misplaced, and contra-dicts Commission guidance and the views of FEMA concerning the adequacy of offsite protective planning measures. 41/

i 40/

The possible unavailability of the primary hospital was no doubt the rationale for the evaluation criterion s require-ment of " local and backup hospital services." NUREG-0654, p. 69. ]

l 41/ "As a matter of practice, the Commission ives great weight to FEMA's views on the need for and adequacy o specific offsite protective planning measures." ' Southern ~ California Edison Co.,

- supra, 17 NRC at 533.

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r-Evaluation criterion L. 1 of NUREG-0654, quoted above, requires that there be'" assurance that persons providing (hos-pital and medical) services are adequately ~ prepared to handle contaminated individuals." (Emphasis added)..

FEMA considered the question of " adequate preparation",

and concluded that:

The justification for (making advance arrange-ments for medical services) is in part the dif- , ,

ficulty of predicting additional and concurrent medical needs. Advance arrangements are justi-fied because of the need to initiate a medical history for those exposed individuals whose future health could be affected and to reduce organiza-tional demands on hospital emergency staff. The medical services being called for here are those

predominantly of medical staff knowledge and i capability to handle the additional factor of radiological contamination or exposure.

l Decontamination facilities and monitoring equip-ment would be necessary along with trained and L knowledgeable staff. Planning, training, and i pre-established procedures are clearly a need.

j. Southern California Edison Co., supra, 17 NRC at 534.

In-contravention of the clear language of NUREG-0654, the views of FEMA concerning the need for specialized equipment l and procedures, (and as will be shown below, the only expert

]a medical-testimony of record) the Board majority made an assumption

! of adequacy without any assurance:

While the Board has no detailed knowledge of the specific abilities and training of the emergency medical service personnel at these potential alter-native receiving hospitals, who might handle .

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" contaminated injured", it.is'not unreasonable to

' assume that they are adequately . prepared. 42/

[ Emphasis added).

Partial Initial Decision, slip. ojl., p. 147.

This impermissible assumption does not merely fail to rest upon any evidence of record -- it contradicts the expert evidence that was presented.

Ihr. Linneman testified that specialized procedures, ,

training, equipment and supplies are necessary to treat contami-nated injured victims. (Tr. 9811-12: 9816-9821). Despite Joint Committee on Hospital Accreditation (JCHA)-credentials possessed r

by "all hospitals in the area" (Tr. 9914) (thus including PMMC) which requires some radiation capability, Dr. Linneman consistently and repeatedly admitted that PMMC, without RMC's consultation, ,

planning and the provision of additional specialized equipment, was unprepared for its response to an accident at Limerick.

See Tr. 9813-14.

With respect to-one of these area hospitals which the majority " assumed" was prepared, Phoenixville, the sole witness with expertise testified that he did not know whether the.hos-pital staff was currently trained, and simply admitted that he did not know what was the extent of its preparedness for handling 42 /

We note that in making this assumption of adequacy of other hospitals, the majority expressly relied upon the county Radio-

• logical Emergency Response Plans (RERPs) which show a number of hospitals " listed with radiation exposure / contamination treatment

capability". E-73. LEA objects to this notice of and reliance i upon extra-record material which was not marked, used, or admitted at the hearing, and which LEA had no opportunity to review, comment i -

on, or contest in the context of the Board's reliance on it. This action plainly violates the Administrative Procedure Act, 42 U.S.C.

35 56 (e). 1 l

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e contaminated victims. Tr.'9951.

Therefore, the majority impermissibly " assumed"

- what an expert witness could not conclude and on that basis declined to require what it and all partie's agreed was prudent, r in the face of Commission guidance requiring prudent advance medical arrangements.

The course of action recommended by. Judge Brenner's dissent was sensible,~ reasonable, and consistent with the Com-mission guidance in San Onefre. This Appeal Board should reverse the order of the ASLB on this contention and remand the matter i to it for additional proceedings consistent with the views ex-f pressed in Judge Brenner's opinion.

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4 l

1 THE " RECORD.OF DECISION" FAILS

'TO ' COMPLY. WITH '10 ' C . F . R'. ' 851.'.10 3 i

The recently promulgated 10 C.F.R. 5:.51.103 43/

provides:

851.103 Record of Decision - General.

(a) The record of decision recuired by J51.102 shall be clearly identified anc shall:

(2) Identify all alternatives considered by the Commission in' reaching the decision, state that these alternatives were included in the range of ~

alternatives discussed in the environmental impact statement,and specify the alternative or alternatives which were considered to be environmentally preferable.

(3) Discuss preferences among alternatives based on relevant factors, including economic.and technical

, considerations, the NRC's statutory mis'sion,and any essential considerations of national policy, which were balanced by the Commission in making the decision ,

and state how these considerations entered into the decision.

(4) State whether the Commission has taken all prac-

ticable measures within its jurisdiction to avoid or

minimize environmental harm from the alternative

+

selected, and if not, to explain why those measures were not adopted. Summarize any license conditions e and monitoring programs adopted in connection with mitigation measures.

i As a review of the record of decision plainly reveals, the Board considered none of these matters, thus violating the i, regulation. This is a significant deficiency in the circum-i stances of this case particularly because LEA vigorously con-tended that reasonable alternatives were not considered in a l

NEPA context, and that "all practicable measures to avoid or I See 49 Fed. Reg. 9352, 9396 (March 12, 1984) r i

r l .~.

a6** 1 minimize environmental harm" were not being taken. 'See dis-cussion, infra, pp. 2 to 10 .

The Appeal Board should remand the decision to the Board to make the findings and statements requir'ed by 10 C.F.R.

~

851.103.

III CONCLUSION For all the above reasons, intervenor Limerick Ecology Action, Inc. requests this Appeal Board to reverse the decisions of the Atomic Safety and Licensing Board as set forth herein.

Respectfully subruitted, Charles W. Elliott, Esq.

Counsel for Intervenor 1101 Northampton Street Easton, Pennsylvania 18042 (215) 258 - 2374 Dated: October 3, 1984

, .